(dissenting):
My disagreement with the majority’s opinion is with regard to the instructions rather than on the question of sufficiency of the evidence. However, I must expressly dissent from its contention in connection with the latter to the effect that the accused “does not affirmatively assert he could not or did not hear” the order to report. The accused does not have to prove his innocence. On the contrary, the Government must affirmatively prove his guilt beyond a reasonable doubt. Conjecture or surmise cannot substitute for legal evidence. But, after a careful reading of the record, I am satisfied that there is sufficient evidence from which the court-martial could reasonably conclude that the accused heard and understood the order.
Turning to the law officer’s instructions, I disagree with the majority’s amalgamation of physical incapacity and mental responsibility. According to its own analysis of the diagnostic categories in combate psychiatry, an individual suffering from combat-induced “major personality disorganization” is not legally responsible for his acts, but he is quite capable of physical coordination and control. Thus, it is said that a typical reaction of a person in this group is “panic run.” On the other hand, a person in the “anxiety reaction mild to moderate group” is regarded as legally sane. Yet, one of his reactions may be “transient freezing” which plainly implies complete loss of the ability to move physically. Consequently, an instruction on mental responsibility is not sufficient to inform a court-martial that physical incapacity, whatever its cause, is sufficient to constitute a defense to a charge of willful disobedience. Hence, I believe that this case is within the decision in United States v. Heims, 3 USCMA 418, 12 CMR 174, and in United States v. King, 5 USCMA 3, 17 CMR 3. I would, therefore, set aside the findings of guilty and order a rehearing.